Monday, July 13, 2009

Reversal for Failure to Grant Continuance and for Failure to Consider Objection to Magistrate's Recommendation

In Riley v. Riley (2D08-62), the Second District reversed the final judgment below for failure to grant a motion for continuance prior to the final hearing and for the trial court's failure to hear a timely filed objection to the magistrates recommendation.

Although a trial court has broad discretion in determining whether to grant a motion for continuance, that discretion is not absolute. Neal v. Swaby, 975 So. 2d 431, 433 (Fla. 2d DCA 2007). The appellate court considers the following factors in determining whether the trial court abused its discretion in ruling on a motion for continuance: "1) whether the movant suffers injustice from the denial of the motion; 2) whether the underlying cause for the motion was unforeseen by the movant and whether the motion is based on dilatory tactics; and 3) whether prejudice and injustice will befall the opposing party if the motion is granted." Id. (quoting Baron v. Baron, 941 So. 2d 1233, 1235-36 (Fla. 2d DCA 2006)).


A trial court must hear timely filed exceptions to a magistrate's report. See Fla. Fam. L. R. P. 12.490(f); Betz v. Betz, 790 So. 2d 1128, 1130 (Fla. 2d DCA 2001). Rule 12.490(f) provides, "The parties may serve exceptions to the report within 10 days from the time it is served on them." Pursuant to rule 12.090 and Florida Rule of Civil Procedure 1.090(e), the Husband had an additional five days to serve his exceptions because the magistrate's report was served on him by mail. See Werntz v. Floyd, 814 So. 2d 480, 481 (Fla. 4th DCA 2002); Palmer v. Palmer, 582 So. 2d 639, 640 n.1 (Fla. 3d DCA 1991). In fact, the Wife cites Werntz in her answer brief and recognizes that the Husband was allowed the additional five days to serve his exceptions. The time to serve the exceptions began to run on April 24, 2007, the day after the earliest date the report could have been served on the Husband. See Fla. R. Civ. P. 1.090(a); Palmer, 582 So. 2d at 639-40. The Husband timely served his exceptions on May 8, 2007, the fifteenth day after April 23, 2007. Thus, the trial court should have considered the Husband's exceptions before it entered the final judgment. See Betz, 790 So. 2d at 1130.


Post a Comment